UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CAMPBELL, JAMES

v.

DOJ


97-5269b

D.C. Cir. 1999


*	*	*


Rogers, Circuit Judge: James Campbell appeals from the  grant of
summary judgment to the Department of Justice in  an action under the
Freedom of Information Act ("FOIA")  seeking Federal Bureau of
Investigation ("FBI") records  about author and civil rights activist
James Baldwin. Camp- bell contends that the FBI has conducted an
inadequate  search for documents responsive to his FOIA request, that 
the declarations in support of the FBI's invocation of FOIA's 
national security and law enforcement exemptions are insuffi- ciently
detailed to establish the absence of a genuine dispute  of material
fact, and that the district court erred in affirming  the FBI's denial
of Campbell's request for a complete waiver  of fees. We agree with
these contentions, in part because  this circuit's FOIA jurisprudence
has advanced while the  lawsuit has stood relatively still, and we
therefore reverse and  remand the case to the district court for


I.


This case arises from a scholar's efforts to unearth artifacts  from an
awkward period in the history of the FBI. See, e.g.,  Hobson v.
Wilson, 737 F.2d 1, 9-13 (D.C. Cir. 1984) (describ- ing the FBI's
COINTELPRO investigations). In 1988, Ap- pellant James Campbell was
writing a biography about James  Baldwin, a noted author and leader in
the civil rights move- ment. To obtain information for use in his
forthcoming book,  Campbell submitted a FOIA request to the New York
office  of the FBI in which he sought "the FBI file" on Baldwin.  The
parties exchanged correspondence and the New York  and national FBI
offices identified and produced a limited  number of responsive
documents, often in redacted form.  These documents, only some of
which are in the appellate  record, suggest that the FBI monitored
Baldwin's civil rights  activities and contacts with alleged
communists during the  1960s. The parties eventually reached an
impasse about the  scope of the FBI's disclosure obligations. After


his administrative remedies, Campbell filed suit in November  1989 for
injunctive relief compelling the Justice Department  to produce
requested documents and waive copying fees.  Over the course of the
next year, the FBI released additional  documents. In 1991, Campbell
published "Talking at the  Gates: A Life of James Baldwin."


Between 1991 and 1996, Campbell's case languished in  district court as
various stays permitted the FBI to review  documents and respond to
new judicial interpretations of  FOIA. In September 1996, the district
court partially grant- ed the Justice Department's motion for summary
judgment.  The court concluded that the FBI had conducted an adequate 
search, properly invoked exemptions to FOIA, and estab- lished an
appropriate copying fee. After conducting an in  camera inspection of
a file labeled "miscellaneous law en- forcement," the court also
concluded that the Department had  properly invoked FOIA's law
enforcement exemption, and in  August 1997 granted summary judgment to
the Department  on that file as well. The court denied Campbell's
cross  motion for summary judgment, except with regard to a  limited
category of information related to certain investigative  techniques
that the court ordered be disclosed. Campbell  appeals the September
1996 and August 1997 summary judg- ment orders.


II.


A. Adequacy of the search. Viewing the FOIA terrain  with an eye toward
providing guidance to agencies consistent  with congressional intent,
the court explained with respect to  an adequacy-of-search claim in
Oglesby v. United States Dep't  of the Army, 920 F.2d 57 (D.C. Cir.
1990), that "the agency  must show that it made a good faith effort to
conduct a search  for the requested records, using methods which can
be rea- sonably expected to produce the information requested." Id. 
at 68. "If, however, the record leaves substantial doubt as to  the
sufficiency of the search, summary judgment for the  agency is not
proper." Truitt v. Department of State, 897  F.2d 540, 542 (D.C. Cir.
1990). The court applies a "reason-


ableness" test to determine the "adequacy" of a search meth- odology,
Weisberg v. United States Dep't of Justice, 705 F.2d  1344, 1351 (D.C.
Cir. 1983), consistent with congressional  intent tilting the scale in
favor of disclosure. See, e.g., John  Doe Agency v. John Doe Corp.,
493 U.S. 146, 151-52 (1989).


The record indicates that the FBI limited its search for  information
about James Baldwin to files that it could locate  by searching its
Central Records System (CRS) index, which  is capable of locating
most, but not all, documents responsive  to a general request for
information about a particular sub- ject. The district court rejected
Campbell's claim that the  FBI had conducted an inadequate search
because it failed to  check a separate electronic surveillance (ELSUR)
index and  to search for "tickler"1 files even though documents that
the  FBI did produce alluded to potentially responsive ELSUR  and
tickler records.2 The FBI has not offered any evidence  to rebut
Campbell's claim that some of the Bureau's docu- ments
suggest--through administrative annotations and ex- press references
in the text3--that searching the ELSUR  index, or searching for




__________

n 1 A "tickler" is a duplicate file containing copies of documents, 
usually kept by a supervisor. Such files can be of interest to a  FOIA
requester because they could contain documents that failed to  survive
in other filing systems or that include unique annotations.


2 Our review of the record indicates that Campbell properly  raised
this claim in the district court. We therefore reject the 
Department's waiver defense. See District of Columbia v. Air  Florida,
Inc., 750 F.2d 1077, 1084-85 (D.C. Cir. 1984).


3 For example, document 147A on the Vaughn index bears a  notation
showing that it was routed to "Supervisor #42." Campbell  has
submitted unrebutted evidence that such a notation indicates  the
existence of a tickler file. Lesar Decl. p 3. Of course, to the 
extent that the FBI can demonstrate that this reference suggests  the
existence of only a particular type of tickler file, or one located 
in a particular place, it need not search for all tickler files that 
might be located anywhere; the scope of the FBI's search for  ticklers
need only be as broad as is reasonable in light of the  evidence


tional information about James Baldwin.4 Instead, the FBI  contends
that ELSUR and tickler searches are unnecessary  in the vast majority
of cases, and that it therefore need not  conduct such searches unless
expressly asked to do so in a  FOIA request. Because Campbell's
request asked only for  "the FBI file" on Baldwin, the FBI maintains
that it acted  reasonably by searching only the CRS index.


We will assume that the FBI's characterization of ELSUR  and tickler
searches is correct, and that such searches rarely  uncover
information beyond the scope of a CRS search. It  follows from this
assumption that in most cases, the FBI need  not conduct ELSUR and
tickler searches when the FOIA  requester does not expressly ask it to
do so. FOIA demands  only a reasonable search tailored to the nature
of a particular  request. When a request does not specify the
locations in  which an agency should search, the agency has discretion
to  confine its inquiry to a central filing system if additional 
searches are unlikely to produce any marginal return; in  other words,
the agency generally need not "search every  record system." Oglesby,


However, an agency "cannot limit its search to only one  record system
if there are others that are likely to turn up  the information
requested." Id.  An agency has  discretion to conduct a standard
search in response to a 




__________

n 4 The record suggests that the New York FBI office--as  opposed to
FBI Headquarters--did search its local ELSUR index.  At oral argument,
however, the Department was not able to confirm  that such a search
occurred. This factual ambiguity is not material  on appeal because
even if the New York office had searched its  ELSUR index, the
national office would still have been obliged to  search its own index
if it had cause to believe that such a search  would identify
responsive information. 


general request, but it must revise its assessment of what is 
"reasonable" in a particular case to account for leads that  emerge
during its inquiry. Consequently, the court evaluates  the
reasonableness of an agency's search based on what the  agency knew at
its conclusion rather than what the agency  speculated at its
inception. Here, the FBI started with the  reasonable assumption that
only a CRS review would be  necessary, but that assumption became
untenable once the  FBI discovered information suggesting the
existence of docu- ments that it could not locate without expanding
the scope of  its search. Cf. Kowalczyk v. Department of Justice, 73
F.3d  386, 389 (D.C. Cir. 1996). In resisting this conclusion, the 
Department maintains that the "weight of authority" justifies 
refusing to supplement a CRS search with an ELSUR search  unless
specifically asked to do so within the FOIA request.  In fact, such
authority indicates that the FBI must search  ELSUR in addition to CRS
in response to a general FOIA  request for which ELSUR may be
relevant. See Biberman v.  FBI, 528 F. Supp. 1140, 1144-45 (S.D.N.Y.
1982); Larouche v.  Webster, 1984 WL 1061, *2 (S.D.N.Y. 1984); cf.
Schrecker v.  United States Dep't of Justice, 14 F. Supp. 2d 111, 119
(D.D.C.  1998). Moreover, the FBI appears in many cases to have 
searched ELSUR without being asked to do so. See Hart v.  FBI, 1996 WL
403016 at *2 (7th Cir. 1996); Marks v. United  States, 578 F.2d 261,
263 (9th Cir. 1978); Canning v. United  States Dep't of Justice, 848




__________

n 5 Other cases on which the Department relies do not support its 
argument. In Frydman v. Department of Justice, 852 F. Supp.  1497 (D.
Kan. 1994), aff'd mem., 57 F.3d 1080 (10th Cir. 1995), the  district
court criticized the FBI's failure to search ELSUR until  specifically
requested to do so, but held that the lapse was not "bad  faith"
within the context of the plaintiff's claim for attorney's fees.  852
F. Supp. at 1505-06. This holding is hardly an endorsement of  the
Department's position. In Ferguson v. Kelly, 455 F. Supp. 324  (N.D.
Ill. 1978), the court denied plaintiff's motion for reconsidera- tion
of summary judgment in light of plaintiff's recent discovery of  the
existence of ELSUR. The odd procedural posture of Ferguson,  coupled
with its thin reasoning, render it an unpersuasive prece-


The Department also asserts that the existence of ticklers  in its
archives is "speculative" because ticklers are not gener- ally
preserved for posterity and also might not contain infor- mation
distinct from what the FBI already found within the  CRS. It is true
that Campbell has claimed only that a tickler  existed at one time,
not that it exists today or that it contains  unique information. Yet
in any FOIA request, the existence  of responsive documents is
somewhat "speculative" until the  agency has finished looking for
them. As the relevance of  some records may be more speculative than
others, the  proper inquiry is whether the requesting party has estab-
lished a sufficient predicate to justify searching for a particu- lar
type of record. Cf. Meeropol v. Meese, 790 F.2d 942, 953  (D.C. Cir.
1986). Here, the FBI does not deny that such a  predicate exists,
rendering its "speculation" claim irrelevant.  Cf. Oglesby v. United
States Dep't of the Army, 79 F.3d 1172,  1185 (D.C. Cir. 1996);


For these reasons we conclude that the district court erred  in finding
that an adequate search had been made, and  remand the case so that
the FBI can be afforded an opportu- nity to search for tickler and
ELSUR records responsive to  Campbell's FOIA request, and to proceed
as the results of  such searches require.6




__________

n dent. Finally, the Department cites three cases for the general 
proposition that a CRS search is a sufficient response to a general 
FOIA request that does not identify specific locations to search.  See
Master v. FBI, 926 F. Supp. 193, 196 (D.D.C. 1996), aff'd mem.,  124
F.3d 1309 (D.C. Cir. 1997); Lawyers Comm. for Human Rights  v. INS,
721 F. Supp. 552, 566-67 & n.12 (S.D.N.Y. 1989); Friedman  v. FBI, 605
F. Supp. 306, 311 (N.D. Ga. 1981). None of these  opinions indicates
that the plaintiff had objected to the lack of an  ELSUR search or
that such a search might have been productive;  indeed, none even
mentions ELSUR.


6 Campbell also challenges the adequacy of the FBI's search  because it
failed to locate two documents that the FBI provided to  other FOIA
requesters and one document that the FBI apparently  lost. While any
omission in a FOIA search is potentially troubling,  the inadvertent
omission of three documents does not render a  search inadequate when
the search produced hundreds of pages 


B. Exemption 1 (National Security). FOIA authorizes  an agency to
withhold requested material if it is "properly  classified" in the
"interest of national defense or foreign  policy" pursuant to an
applicable executive order. 5 U.S.C.  s 552(b)(1). In the instant
case, the FBI invoked the nation- al security exemption to redact
documents and withhold at  least two entire documents. The sole
justification in the  record for the FBI's classification decision is
a nine-year old  declaration from Special Agent Earl E. Pitts
generally attest- ing to the sensitivity of the withheld information
and the  general importance of safeguarding national security. On 
appeal, Campbell contends both that the district court failed  to
require the FBI to reevaluate its classifications under a  new
executive order and that the Pitts declaration is "too  conclusory to
support summary judgment." We find no error  with regard to the
executive order applied but agree that the  district court erred in
concluding that the Pitts declaration  was sufficiently detailed to


On the threshold issue of which executive order governs  the FBI's
national security determinations, the Department  favors application
of E.O. 12356 ("the Reagan Order"), which  was in effect at the time
that the FBI made the classification  decisions at issue in this case,
while Campbell proposes E.O.  12958 ("the Clinton Order"), which took
effect during the  pendency of the district court proceedings. A
district court  may, upon request by an agency, permit the agency to
apply  a superceding executive order during the pendency of FOIA 
litigation. See Baez v. United States Dep't of Justice, 647  F.2d
1328, 1334 (D.C. Cir. 1980). However, absent a request  by the agency
to reevaluate an exemption 1 determination  based on a new executive
order, the district court may not  require the agency to apply the new
order; instead, the court  must evaluate the agency's decision under
the executive order  in force at the time the classification was made.
See King v.  United States Dep't of Justice, 830 F.2d 210, 216-17
(D.C.  Cir. 1987); Lesar v. United States Dep't of Justice, 636 F.2d




__________

n that had been buried in archives for decades. See Meeropol, 790  F.2d
at 952-53.


472, 480 (D.C. Cir. 1980). This rule prevents undue delay and  burden
in the resolution of FOIA claims by introducing an  element of
finality into agency decisionmaking. See Lesar,  636 F.2d at 480. It
follows that the district court properly  applied the Reagan Order
because the FBI did not seek leave  to reconsider its position in
light of the Clinton Order.


However, Lesar did not purport to create a general rule  about the
non-applicability of superceding executive orders in  ongoing FOIA
cases. Rather, the opinion relied in part on an  interpretation of the
superceding executive order, which the  court found to be expressly
prospective because it preserved  all classification decisions made
under prior orders. See id.  The mere fact that the Clinton Order came
into force after  the classification decisions in the instant case
therefore does  not in and of itself preclude application of the Order
under  Lesar. Instead, the question is whether the Clinton Order 
calls prior classification decisions under the Reagan Order  into
question.7 We conclude that the Clinton Order does not  permit FOIA
litigants to reopen classification decisions final- ized before the
Order's effective date. As with the order  reviewed in Lesar, the
Clinton Order defines classified infor- mation to include information
classified under prior orders.  See E.O. 12958 s 1.1(c). Moreover, the
Clinton Order does  not contain any provision that requires an agency
to reconsid- er classification decisions in pending FOIA litigation.


Campbell nevertheless contends that the Clinton Order is  "remedial"
and therefore requires a remand. Executive or- ders that replace a
prior order are likely to be remedial in  that they correct some
perceived deficiency in the prior  regime. Thus, the relevant question
is not whether the new  order materially differs from the old, but
rather whether the  new order confines its disagreement with the past




__________

n 7 This reasoning is consistent with King, which has language in  it
that appears to characterize Lesar as creating a per se rule 
applicable to all future transitions between executive orders. See 
830 F.2d at 217. A careful reading of King reveals, however, that  the
court expressly recognized that Lesar relied on a "carry-over 
provision" in the superceding executive order that preserved classi-
fication decisions made under the prior order. Id. at 216.


dies that operate in the future, or instead creates a retrospec- tive
remedy that allows a FOIA litigant to reopen an other- wise final
review. While, as Campbell observes, the Clinton  Order substantially
alters the process for declassifying rela- tively old documents, see,
e.g., E.O. 12958 ss 3.3(e) & 3.6,  nothing in the Order requires the
district court to apply the  new standards in a pending FOIA action.


Turning to the merits of Campbell's challenge to the FBI's  decisions
under exemption 1, we note that the Department's  sole explanation and
defense of the FBI's exemption 1 classi- fications is the Pitts
declaration and accompanying appendi- ces.8 An agency bears the burden
to justify exemptions  under FOIA. See PHE, Inc. v. Department of
Justice, 983  F.2d 248, 250 (D.C. Cir. 1993). One way to discharge
this  burden is to submit a declaration from an appropriately 
qualified official attesting to the basis for the agency's deci- sion.
In the context of national security exemptions, such  declarations
merit "substantial weight." King, 830 F.2d at  217; Military Audit
Project v. Casey, 656 F.2d 724, 737 (D.C.  Cir. 1981). However,
deference is not equivalent to acquies- cence; the declaration may
justify summary judgment only if  it is sufficient "to afford the FOIA
requester a meaningful  opportunity to contest, and the district court
an adequate  foundation to review, the soundness of the withholding." 
King, 830 F.2d at 218. Among the reasons that a declaration  might be
insufficient are lack of detail and specificity, bad  faith, and
failure to account for contrary record evidence.  See id. Here, only
detail and specificity are at issue.


To justify summary judgment, a declaration must provide  detailed and
specific information demonstrating "that materi-




__________

n 8 The appendices consist of redacted documents marked with a  coded
annotation and a catalog explaining the meaning of each code. 
Campbell suggests that this system of marking documents is inher-
ently flawed. However, the court has previously stated that this 
methodology for explaining classification decisions can be sufficient 
provided that it complies with the substantive requirements noted 
above, which are applicable to any methodology for processing  FOIA
exemptions. See Keys v. United States Dep't of Justice, 830  F.2d 337,
349-50 (D.C. Cir. 1987).


al withheld is logically within the domain of the exemption  claimed."
King, 830 F.2d at 217. "[A]n affidavit that con- tains merely a
'categorical description of redacted material  coupled with
categorical indication of anticipated conse- quences of disclosure is
clearly inadequate.' " PHE, 983 F.2d  at 250 (quoting King, 830 F.2d
at 224). Or as the court  stated in Hayden v. National Sec. Agency,
608 F.2d 1381,  1387 (D.C. Cir. 1979), "the affidavits must show, with
reason- able specificity, why the documents fall within the exemption.
 The affidavits will not suffice if the agency's claims are 
conclusory, merely reciting statutory standards, or if they are  too
vague or sweeping." Id. (footnote omitted). These re- quirements are
consistent with the agency's general obli- gation to create "as full a
public record as possible, concern- ing the nature of the documents
and the justification for  nondisclosure." Id. at 1384.


The Pitts declaration cannot satisfy the foregoing stan- dards.
Notably, the Pitts declaration does not contain any  specific
reference to Baldwin or any other language suggest- ing that the FBI
tailored its response to a specific set of  documents. Cf. Wiener v.
FBI, 943 F.2d 972, 979 (9th Cir.  1991). More importantly, the
declaration fails to draw any  connection between the documents at
issue and the general  standards that govern the national security
exemption. For  example, the declaration states that "[a]ll of the
intelligence  activities or methods detailed in the withheld
information are  currently utilized by the FBI" and that disclosure of
intelli- gence methods is undesirable. However, the declaration  makes
no effort to assess how detailed a description of these  Hoover-era
methods the documents provide, and whether  disclosure would be
damaging in light of the degree of detail.  Similar failures to
connect general statements about the  content of the withheld
documents with general standards for  classifying information appear


The Department's explanation for the declaration's lack of  detail is
that providing more detail would "risk[ ] the disclo- sure of the very
information that the FBI was attempting to  protect." The court has
acknowledged that requiring too  much detail in a declaration could
defeat the point of the 


exemption, but concluded nonetheless that in most cases the  agency
should not have difficulty describing the context and  nature of the
withheld information without revealing its sub- stance. See Hayden,
608 F.2d at 1385. Only in special  circumstances, such as those
surrounding the intelligence  mission of the National Security Agency,
can even minimal  detail itself constitute sensitive information. See
id.9 Here  the information appears to describe no more than routine 
FBI surveillance and monitoring techniques. Such activity  no doubt
generates material that may properly be classified  and withheld under
FOIA, but it is implausible to baldly  assert that such material is so
sensitive that the FBI is  incapable of providing any descriptive
information. Likewise,  summary judgment was inappropriate with
respect to two  documents, comprising six pages, that the FBI withheld
 without providing any details (including date) in the Pitts 
declaration10 or elsewhere because a conclusory assertion that 
material is exempt and nonsegrable is insufficient to support 
nondisclosure. See, e.g., Kimberlin v. Department of Justice,  139


On remand, the district court can either review the docu- ments in
camera or require the FBI to provide a new  declaration. See PHE, 983
F.2d at 253. The latter course is  favored where agency affidavits are
facially inadequate; oth- erwise the district court is effectively
left to speculate about  why an agency may be able to classify a
document and cannot 




__________

n 9 In such circumstances, "the solution is for the court to review 
the document in camera" rather than passively accept an agency's 
unsubstantiated exemption 1 defense. Simon v. Department of  Justice,
980 F.2d 782, 784 (D.C. Cir. 1992).


10 The Department's brief cites paragraphs 22 and 23 of the  Pitts
declaration to support withholding these two documents, but  the cited
paragraphs are boilerplate that make no reference to the  disputed
material. Indeed, paragraphs 22 and 23 apply solely to  material that
was redacted rather than entirely withheld because  they invite the
reader to review unredacted portions of documents  to discern the
"context" for the deletions. Such review is of course  impossible


review a concrete classification decision.11 See id. A new 
declaration need not exhaustively explain each redaction and 
withholding, but it must provide sufficient information to  permit
Campbell and the district court to understand the  foundation for and
necessity of the FBI's classification deci- sions. See King, 830 F.2d


C. Exemption 7 (Law Enforcement). FOIA exempts  from disclosure six
categories of documents that have been  "compiled for law enforcement
purposes." 5 U.S.C.  s 552(b)(7)(A)-(F). The FBI withheld information
based on  various sub-categories of this law enforcement exemption. 
The district court concluded that the withheld information  was
compiled for a law enforcement purpose and fit within  one of the
subcategories within exemption 7. With respect to  all but one set of
documents, the district court relied on the  FBI's declarations.
However, the district court did not find  the declarations adequate to
justify withholding a file labeled  "miscellaneous law enforcement"
and instead conducted an in  camera review, thereafter concluding that
most of the file had  been properly withheld, but ordering a small
supplemental  disclosure to Campbell.12


On appeal, Campbell contends first, that the FBI's declara- tions were
insufficient to establish a rational nexus between 




__________

n 11 In preparing a new declaration on remand, the FBI's new  declarant
(assuming that Mr. Pitts is no longer available) presum- ably must
re-review the redactions and withholdings. The Clinton  Order will
govern this review. See King, 830 F.2d at 216; Afshar v.  Department
of State, 702 F.2d 1125, 1137 (D.C. Cir. 1983). This  rule is
consistent with our reasoning in Lesar: when an agency has  completed
a FOIA review, principles of finality weigh against  ordering a new
review under a new order, but when a court orders  a new review on
other grounds, respect for the President's authori- ty to define
national security priorities requires that the new review  proceed
under current law rather than the superceded law of a  prior
administration. See King, 830 F.2d at 217.


12 Although Campbell has also appealed from the district  court's
August 1997 order, his brief does not address the materials 


the withheld material and a legitimate law enforcement pur- pose, and
second, that information was improperly withheld  under exemptions
7(C) (invasion of personal privacy) and 7(D)  (disclosure of
confidential sources). We agree with Camp- bell's first contention and
therefore remand to the district  court for further development of the
record. With that  remand in mind, and in the hope of bringing
resolution to this  1988 FOIA request, we comment briefly on
Campbell's 7(C)  and 7(D) contentions.


Because the FBI specializes in law enforcement, its deci- sion to
invoke exemption 7 is entitled to deference. See Pratt  v. Webster,
673 F.2d 408, 419 (D.C. Cir. 1982). This court's  "deferential"
standard of review is not, however, "vacuous."  Id. at 421. If the FBI
relies on declarations to identify a law  enforcement purpose
underlying withheld documents, such  declarations must establish a
rational "nexus between the  investigation and one of the agency's law
enforcement duties,"  id. at 421, and a connection between an
"individual or incident  and a possible security risk or violation of
federal law." Id.  at 420. If the declarations "fail to supply facts"
in sufficient  detail to apply the Pratt rational nexus test, then a
court may  not grant summary judgment for the agency. Quinon v.  FBI,
86 F.3d 1222, 1229 (D.C. Cir. 1996); see also Davin v.  United States
Dep't of Justice, 60 F.3d 1043, 1056 (3d Cir.  1995).


The Department has identified only two facts to establish  that
documents relating to James Baldwin were compiled for  a law
enforcement purpose. First, the FBI relies on a  declaration from
Special Agent Regina Superneau in which  she lists the names of the
files containing withheld informa- tion. The relevant labels are:
"Interstate Transportation of  Obscene Material," "Security
Matter--Communism," and "In- ternal Security."13 The fact that




__________

n that the district court reviewed in camera. We therefore affirm the 
district court's order with respect to those exemption 7 materials.


13 The Department's brief does not reference a file labeled  "Racial
Matter" despite the fact that the declaration indicates that 


a folder with an official-sounding label is insufficient standing 
alone to uphold nondisclosure. See, e.g., Simon, 980 F.2d at  784;
Keys, 830 F.2d at 341. Indeed, the Department's posi- tion reduces to
the long-rejected claim that anything in an  FBI file pertains to an
exempt law enforcement purpose. See  Pratt, 673 F.2d at 415. At a
minimum, the FBI must  demonstrate the relationship between a record
and its label  and between the label and a law enforcement purpose.


Second, the Department relies on a statement in the decla- ration of
Special Agent Debra Mack that "[t]he FBI investi- gation of James
Baldwin was predicated upon the fact that  established security
sources of the FBI had indicated that  James Baldwin was associating
with persons and organiza- tions which were believed to be a threat to
the security of the  United States." If this statement were offered to
justify  exemption of a particular document, it might suffice provided
 it contained sufficient detail about the scope of the association 
and the nature of the threat. The problem, however, is that  the
Department relies on this statement to justify every  withholding from
each of at least three files collected over  many years on different
topics in different contexts. The  FBI appears to maintain that once
it can justify its investiga- tion of a person, all documents related
to that person are  exempt from FOIA, even if the documents were
collected for  a different reason. This position is untenable. Rather,
to  justify summary judgment under exemption 7, the FBI must  explain
why each withheld document or set of closely similar  documents relate
to a particular law enforcement purpose.  The Mack declaration does
not attempt this inquiry. Thus,  although the FBI may possess some
documents related to a  valid law enforcement investigation of James
Baldwin, we  cannot conclude that each withheld document about James 
Baldwin related to such an investigation. Absent a sufficient 
threshold showing that the withheld information was "com-




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n this was a law enforcement file. On remand, the district court 
should determine whether information was withheld from this file  and
whether it is related to a legitimate law enforcement purpose.


piled for law enforcement purposes," we reverse; on remand  the FBI
may again attempt to meet its statutory burden.  See Summers v.
Department of Justice, 140 F.3d 1077, 1083  (D.C. Cir. 1998).


Exemption 7(C) bars disclosures that "could reasonably be  expected to
constitute an unwarranted invasion of personal  privacy." 5 U.S.C. s
552(b)(7)(C). An agency may not with- hold records under exemption
7(C) solely because disclosure  would infringe legitimate privacy
interests, but must balance  privacy interests against the public's
interest in learning  about the operations of its government. See
United States  Dep't of Defense v. Federal Labor Relations Auth., 510
U.S.  487, 495 (1994); United States Dep't of Justice v. Reporters 
Comm. for Freedom of the Press, 489 U.S. 749, 762 (1989).  The record
suggests that the FBI made an abstract attempt  to identify possible
public interests in disclosure and accorded  these interests
surprisingly little weight. This attitude is  troubling given the
presumption of openness inherent in  FOIA, see Department of Air Force
v. Rose, 425 U.S. 352, 361  (1976), and the obvious historical value
of documents describ- ing the FBI's role in the cold war and in the
civil rights  movement. Undoubtedly there are important privacy rights
 of individuals caught in the web of a wide-ranging criminal 
investigation that warrant protection, but the balancing pro- cess in
the instant case appears to have been somewhat of an  empty formality.
On remand, the FBI will have the opportu- nity to provide additional
explanation about the relative  weight of the competing public and
private interests at stake,  and the district court will have an
opportunity to provide an  analysis that will "fully articulate the
balance it reaches" and  resolve "fact-intensive" issues to permit
"efficient and mean- ingful" appellate review. Summers, 140 F.3d at


Insofar as Campbell contends that the FBI has wrongfully  invoked
exemption 7(C) to protect the privacy of people who  are dead, two
questions are presented: how does death affect  the exemption 7(C)
balancing calculus, and what must the  FBI do to ascertain whether the
persons whose privacy it  seeks to protect have died. First, death
clearly matters, as  the deceased by definition cannot personally


privacy-related injuries that may plague the living. A court 
balancing public interests in disclosure against privacy inter- ests
must therefore make a reasonable effort to account for  the death of a
person on whose behalf the FBI invokes  exemption 7(C). See Summers,
140 F.3d at 1084-85 (Silber- man, J., concurring); id. at 1085
(Williams, J., concurring);  Kiraly v. Federal Bureau of
Investigation, 728 F.2d 273, 277- 78 (6th Cir. 1984).14 The court must
also account for the fact  that certain reputational interests and
family-related privacy  expectations survive death. As was recently
pointed out by  the Supreme Court in Swidler & Berlin v. United
States, 118  S. Ct. 2081, 2086 (1998), the attorney-client privilege
survives  the death of the client, who "may be concerned about reputa-
tion, civil liability, or possible harm to friends or family."  This
instruction by the Court would appear to undercut the  conclusion of
the Third Circuit in Davin, 60 F.3d at 1058, and  McDonnell v. United
States, 4 F.3d 1227, 1257 (3d Cir. 1993),  that under FOIA deceased
persons "have no privacy interest  in nondisclosure of their
identities." The scope and weight of  these interests need not be
resolved on the present record,  however, although we note analysis of
privacy under FOIA  often differs from similar analysis in other areas
of the law.  See Reporters Committee, 489 U.S. at 762 n.13.


Second, the present record is insufficient to permit mean- ingful
discussion of the extent, if any, to which the FBI must  investigate
to determine whether putative beneficiaries of  7(C) are alive or
dead. See Summers, 140 F.3d at 1085  (Williams, J., concurring). On
remand, the parties may docu- ment their respective positions, and the
district court should  order the FBI to take such action as is
necessary to ensure  proper implementation of exemption 7(C). To the
extent  Campbell has also challenged specific redactions of names or 
categories of names, the district court, which will have the  benefit
of the FBI's supplemental declarations, can initially  resolve these
challenges more effectively.




__________

n 14 Death of a confidential source, in contrast, is not relevant 
under exemption 7(D). See Schmerler v. FBI, 900 F.2d 333, 335-36 
(D.C. Cir. 1990).


Exemption 7(D) covers "records or information compiled by  criminal
law enforcement authorities in the course of criminal  investigations
if their release could reasonably be expected to  disclose the
identity of, as well as information provided by, a  confidential
source." Computer Prof'ls for Social Responsi- bility v. United States
Secret Serv., 72 F.3d 897, 905 (D.C.  Cir. 1996). The mere fact that a
person or institution pro- vides information to a law enforcement
agency does not  render that person a "confidential source" within the
meaning  of exemption 7(D). See United States Dep't of Justice v. 
Landano, 508 U.S. 165, 178 (1993). Rather, exemption 7(D)  applies
only when "the particular source spoke with an under- standing that
the communication would remain confidential."  Id. at 172. Such
understandings are reasonable when the law  enforcement agency
receiving information provides either an  express or implied assurance


The district court concluded that the FBI appropriately  withheld
information received from sources to whom the FBI  had provided either
express or implied assurances of confi- dentiality. The district
court's reasoning with respect to the  implied assurances is
correct,15 but the FBI's declarations  with respect to express
assurances are insufficient to warrant  summary judgment.


To withhold information under Exemption 7(D) by express  assurances of
confidentiality, the FBI must present "proba- tive evidence that the
source did in fact receive an express  grant of confidentiality."
Davin, 60 F.3d at 1061. Such  evidence can take a wide variety of
forms, including notations  on the face of a withheld document, the
personal knowledge 




__________

n 15 The district court concluded that local, state, and foreign law 
enforcement agencies, as well as a former member of an allegedly 
subversive organization, had cooperated with the FBI's anti- communist
activities based upon an implied assurance of confiden- tiality. This
conclusion is consistent with the record and with the  Supreme Court's
analysis in Landano. See Landano, 508 U.S. at  175-76; Ferguson v.
FBI, 83 F.3d 41, 43 (2d Cir.1996); Declaration  of Debra Mack at pp


of an official familiar with the source, a statement by the  source,
or contemporaneous documents discussing practices  or policies for
dealing with the source or similarly situated  sources. See, e.g.,
id.; Computer Prof'ls, 72 F.3d at 906. No  matter which method the
agency adopts to meet its burden of  proof, its declarations must
permit meaningful judicial review  by providing a sufficiently
detailed explanation of the basis  for the agency's conclusion. For,
as the Supreme Court has  observed in regard to mere assertions that
there is a confi- dential source: "Once the FBI asserts that
information was  provided by a confidential source ... the
requester--who has  no knowledge about the particular source or the
information  being withheld--very rarely will be in a position to
offer  persuasive evidence that the source in fact had no interest in 


The FBI declaration simply asserts that various sources  received
express assurances of confidentiality without provid- ing any basis
for the declarant's knowledge of this alleged  fact. Given that the
declarant presumably lacks personal  knowledge of the particular
events that occurred more than  30 years ago, more information is
needed before the court can  conclude that exemption 7(D) applies. We
also note that  while the FBI's declaration maintains that many
documents  reveal express guarantees of confidentiality on their face,
 some of these guarantees have been redacted or the entire  document
withheld, rendering judicial review impossible. On  remand, the FBI
can produce such additional information as  is necessary to document
its exemption 7(D) defenses.


III.


Finally, Campbell challenges the fee assessment for copy- ing certain
FBI files. FOIA permits an agency to charge a  reasonable fee for
searching, copying, and reviewing files.  See 5 U.S.C. s
552(a)(4)(A)(ii). The agency must waive or  reduce this fee when
disclosure of requested information is 


"in the public interest because it is likely to contribute 
significantly to public understanding of the operations or  activities
of the government and is not primarily in the  commercial interest of
the requester." 5 U.S.C.  s 552(a)(4)(A)(iii). The FBI has promulgated
regulations to  structure its discretion under this fee waiver
provision. See  28 C.F.R. s 16.11(d). Judicial review in "any action
by a  requester regarding the waiver of fees" is de novo, but is 
limited to the record before the agency. 5 U.S.C.  s


The FBI did not charge Campbell any fees for search and  review related
to his FOIA request, but it did charge for  approximately $165 in
copying expenses. Campbell did not  pay the full amount because the
FBI granted him a 60% fee  waiver. According to the FBI, the remaining
40% of the fees  were not waivable because 40% of the released
documents  would not further public understanding about the operations
 of government. Such documents were either redundant with  material
already in the public domain, repetitious with other  material being
produced, or contained administrative informa- tion of no importance
to the public. If a page contained any  substantive information, even
if embedded within mostly non- substantive material, the FBI granted a


The district court accepted the FBI's reasoning and af- firmed the 60%
waiver, noting that:


Neither party disputes that FBI and CIA files of civil  rights activist
James Baldwin concern the 'operations or  activities of the
government.' Nor is it disputed that  plaintiff stands to gain
commercially from responsive  documents. Indeed, plaintiff has already
authored a  biography about James Baldwin using materials respon- sive
to his FOIA request. The court concurs with the  FBI's assertion that
40% of the releasable material was  not new material. As such, the
court is persuaded that  the material would therefore be less likely
to contribute  significantly to public understanding. Accordingly, the
 court upholds the FBI decision to grant a 60 percent 


partial fee waiver and charge duplication fees for the  remaining 40
percent.


Memorandum Opinion at 18-19. Campbell challenges this  reasoning and
contends that he is entitled to a 100% fee  waiver. We agree that the
district court must reconsider its  analysis, but we decline to hold
that the FBI cannot charge  Campbell any copying fees.


The district court prominently noted its view that the  parties agreed
"that plaintiff stands to gain commercially  from responsive
documents." Yet this statement is contra- dicted by the record, as the
FBI did not take commercial  profit into account when calculating a
fee waiver because it  concluded that Campbell "has no overriding
commercial inter- est in this case." The FBI's reasoning is consistent
with the  underlying purpose of the fee waiver provisions, which
afford  "special solicitude" to scholars whose archival research ad-
vances public understanding of government operations. Na- tional
Treasury Employees Union v. Griffin, 811 F.2d 644,  649 (D.C. Cir.
1987). The fact that a bona fide scholar profits  from his scholarly
endeavors is insufficient to render his  actions "primarily ...
commercial" for purposes of calculating  a fee waiver, as Congress did
not intend for scholars (or  journalists and public interest groups)
to forego compensation  when acting within the scope of their
professional roles. The  quasi-commercial nature of Campbell's
research was there- fore irrelevant for purposes of calculating an


The district court also agreed with the FBI "that 40% of  the
releasable material was not new material.... [and]  would therefore be
less likely to contribute significantly to  public understanding." Our
review of the FBI's fee waiver  decision indicates that the FBI
reached this conclusion based  on several flawed assumptions. For
example, the FBI con- cluded that previously unreleased summaries by
its staff of  newspaper articles constitute public domain material,
because  the underlying articles are public, that would not further 
public understanding. Yet the fact that FBI work-product  incorporates
publicly available information does not detract 


from its value independent of the source material. Indeed,  insight
into how the FBI reacts to the media is the kind of  public
understanding of government operations that FOIA  was designed to


The district court also accepted the FBI's contention that  portions of
the requested materials were already in the public  domain. Yet the
FBI has never explained where in the  "public domain" these materials
reside. Such an explanation  is necessary because the mere fact that
material is in the  public domain does not justify denying a fee
waiver; only  material that has met a threshold level of public
dissemina- tion will not further "public understanding" within the
mean- ing of the fee waiver provisions. See, e.g., Carney v. United 
States Dep't of Justice, 19 F.3d 807, 815-16 (2d Cir. 1994); 
Schrecker v. Department of Justice, 970 F. Supp. 49, 50-51  (D.D.C.
1997); Fitzgibbon v. Agency for Int'l Dev., 724  F. Supp. 1048, 1051
(D.D.C. 1989). Likewise, the FBI has  not indicated how closely
related the requested material was  to material already in the public
domain, an omission that  precludes deference to its ultimate


Furthermore, the presence of administrative material with- in files
that also contain substantive documents does not  justify charging
fees for copying the non-substantive clutter.  The fee waiver
provisions implicitly assume that valuable  government information
tends not to be freestanding; few  files contain neatly segregated
"substantive" documents shorn  from their administrative
accompaniments. Congress pre- sumably did not intend agencies to pick
through responsive  records to determine the percentage of the record
that con- tains interesting morsels and to deem the remainder of the 
record irrelevant to public understanding. The more plausi- ble
reading of the statute is that once a given record is  deemed to
contain information warranting a waiver, all of the  related pages
within that record that are responsive to the  FOIA request fall under
the waiver even if each individual  page would not independently




__________

n 16 A different standard might apply to records or files that are 
uncommonly large or that contain only a few substantive documents 
relative to the volume of administrative information.


the requester--here a scholar--rather than the FBI, to parse  the wheat
from the chaff. Cf. Project on Military Procure- ment v. Department of
the Navy, 710 F. Supp. 362, 366  (D.D.C. 1989).


In addition, the FBI impermissibly denied a waiver for  copying
repetitious, but non-duplicative, material. A scholar  has a strong
interest in reviewing each repetition of a given  topic within a file
or set of files to explore nuances and assess  the manner in which the
government handled the information.  Deeming repetitious documents
within a single request to be  of no value to "public understanding"
is therefore inconsistent  with the purposes of FOIA.17 Of course,
repetition at some  point shades into duplication, but the record on
appeal does  not explain how the FBI distinguished between permissible
 and impermissible repetition; we learn only that the Bureau  denied a
waiver for documents with "substantially the same  information" as


Accordingly, we reverse the grant of summary judgment  and remand the
case to the district court so that the FBI can  conduct an adequate
search for ELSUR and tickler records,  justify its defenses under
exemptions 1, 7(C), and 7(D) in  sufficient detail to permit
meaningful judicial review, and  recalculate its fee waiver ratio to
comply with the statutory  standards.18




__________

n 17 The FBI also denied a waiver for copying duplicate docu- ments.
This decision appears legitimate, although in certain cir- cumstances
the fact that a given document was found in a given file  could
further public understanding even if the contents of the  document are
already known.


18 In light of this disposition, the district court's discussion of 
attorney's fees is premature; Campbell remains free to request  such
fees at a later stage in the litigation.